No. 1-21-1482 Third Division September 7, 2022 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

____________________________________________________________________________

XUEDONG PAN, ) Appeal from the Circuit Court ) of Cook County. Plaintiff-Appellant, ) ) v. ) No. 20 L 4061 ) TINA KING and BELLA MO, ) ) The Honorable Defendants-Appellees. ) Margaret Ann Brennan, ) Judge Presiding.

____________________________________________________________________________

JUSTICE GORDON delivered the judgment of the court, with opinion. Justices Burke and Ellis concurred in the judgment and opinion.

OPINION

¶1 Xuedong Pan filed suit against Tina King and Bella Mo, owners of the rooming house in

which plaintiff rented a room where he was violently attacked with a knife by Qiu Lin, another

renter at the rooming house. In his three-count second amended complaint, plaintiff alleges

that defendants (1) were negligent in numerous ways, including their failure to, inter alia,

“reasonably screen tenants prior to agreeing to rent to them,” (2) violated the Premises Liability No. 1-21-1482

Act (740 ILCS 130/1 et seq. (West 2018)) by failing to maintain the common areas of the

rooming house in a reasonably safe condition, and (3) breached an implied warranty that

required them to take adequate and reasonable affirmative steps to allow plaintiff to safely and

quietly inhabit the room he rented. Defendant King filed a motion to dismiss pursuant to section

2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2018)), which the trial court

granted with prejudice, finding that defendants did not owe plaintiff a duty of care. Plaintiff

appealed the trial court’s dismissal of his complaint and argues that defendants did owe

plaintiff a duty of care. For the following reasons, we affirm the trial court’s order granting

King’s motion to dismiss but vacate that portion of the order dismissing plaintiff’s complaint

with prejudice, thereby permitting plaintiff to replead his allegations.

¶2 I. BACKGROUND

¶3 On January 19, 2019, plaintiff responded to an online advertisement for a room rental in a

rooming house owned and operated by defendants. 1 Plaintiff argues that, when he inquired

about renting a room, defendants did not inquire into plaintiff’s background, did not ask for

references, did not ask if he had a prior criminal record, did not inquire if he had a history of

prior evictions, and did not require a written application. Defendants rented a room to plaintiff

without any known investigation.

¶4 This room rental agreement was memorialized in a signed, handwritten agreement that

included only the names of the parties (Xuedong Pan and Tina King), the address of the room

(“238 West 18th Street, 2nd floor 1 room”), the monthly rent ($700), and the term of the rental

(one year). The agreement was silent as to any rules, regulations, or other provisions

whatsoever. It is unclear to what extent it was known to plaintiff at the time he agreed to rent

1 The following account of events is taken from plaintiff’s second amended complaint. 2 No. 1-21-1482

the room that all common facilities outside of the room he slept in were to be shared with other

renters. These shared facilities included bathrooms, toilet areas, a kitchen, and corridors and

hallways.

¶5 Plaintiff alleges that defendants had a history of altercations between renters in the rooming

house, including a 2018 knife attack on a renter by another renter, which was not disclosed to

plaintiff at the time he agreed to rent the room.

¶6 In May 2019, about four months after plaintiff moved in, defendants rented a room to a

person named Qui Lin (Lin), whom plaintiff did not know. Plaintiff alleges that defendants

failed to conduct any inquiry into Lin’s background and did not notify plaintiff or other renters

that Lin would be moving into a room. According to plaintiff, “Mr. Lin demonstrated a quick

and severe temper and became intentionally antagonistic toward other roomers, including

Plaintiff.” Plaintiff also alleges that Lin had been evicted from other rooming houses. Plaintiff

and other renters complained to defendants about Lin’s behavior, but defendants purportedly

“failed to respond with rules, regulations, and limitations on when and how roomers could

access common areas, and did not undertake any effort to respond to the roomers’ complaints.”

¶7 On August 26, 2019, plaintiff and Lin engaged in a verbal exchange regarding Lin’s

behavior. The exchange took place in the shared kitchen. Plaintiff alleges he advised Lin that

his behavior was impeding the ability of other renters, including plaintiff, to “live in a quiet,

safe and habitable rental room.” According to plaintiff, Lin grabbed a large butcher knife and

assaulted plaintiff multiple times and chased him in pursuit around the premises. The assault

resulted in numerous deep cuts that injured various organs and parts of his body.

3 No. 1-21-1482

¶8 Plaintiff subsequently filed a complaint, amended complaint, and second amended

complaint. The trial court’s dismissal of the second amended complaint is the subject of the

instant appeal.

¶9 The second amended complaint comprises three counts: I. negligence, II. premises liability,

and III. breach of implied warranty of habitability. Under count I, plaintiff alleges that

defendants were negligent in numerous ways, including, inter alia, failing to adopt rules for

the maintenance of common areas, failing to adopt rules of conduct between renters, failing to

respond to complaints from renters regarding other renters’ activities and behavior, failing to

secure common areas, failing to reasonably screen renters prior to renting to them, failing to

disclose a history of altercations in the premises to plaintiff prior to renting to him, and renting

rooms intended for single occupancy to multiple renters, causing overcrowding. According to

plaintiff, these negligent acts and omissions were the direct and proximate cause of plaintiff’s

injuries. Under count II, plaintiff alleges that defendants owed renters a duty of ordinary care

to keep the kitchen and other common areas of the rooming house in a reasonably safe

condition and, by failing to do so, violated the Premises Liability Act (740 ILCS 130/1 et seq.

(West 2018)). Under count III, plaintiff alleges that the lease agreement implied a warranty

that defendants would take adequate and reasonable affirmative steps to allow plaintiff to

safely and quietly inhabit the room he rented.

¶ 10 Defendant King filed a motion to dismiss plaintiff’s second amended complaint pursuant

to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2018)). King argued

that plaintiff has failed to state a cause of action under all three counts. More specifically, King

argued that plaintiff cannot establish a claim of negligence because the defendants did not owe

plaintiff a duty. Second, King contended that plaintiff’s premises liability claim fails because

4 No. 1-21-1482

plaintiff did not allege a defect in the rooming house. Finally, King argued that plaintiff’s claim

under a theory of implied warranty of habitability fails because there is no existing law to

support the contention that such a warranty could extend to personal injuries arising from a

criminal attack by a third party.

¶ 11 On October 22, 2021, the trial court issued a written order dismissing plaintiff’s second

amended complaint in its entirety, with prejudice. Regarding count I (negligence), the trial

court found that plaintiff failed to plead a claim for negligence. The court found that the

landlord-tenant relationship between plaintiff and defendants did not impose upon the

landlords an obligation to protect tenants from injury by third parties. Regarding count II

(premises liability), the trial court found that plaintiff failed to plead the existence or breach of

a duty under the Premises Liability Act because the duty of an owner or occupier of land

“does not include any of the following: a duty to warn of or otherwise take reasonable steps

to protect such entrants from conditions on the premises that are known to the entrant, are

open and obvious, or can reasonably be expected to be discovered by entrant; a duty to

warn of latent defects or dangers unknown to the owner or occupier of the premises; a duty

to warn such entrants of any dangers resulting from misuse by the entrants of the premises

or anything affixed to or located on the premises or a duty to protect such entrants from

their own misuse of the premises or anything affixed to or located on the premises.”

The trial court found the allegation under count III (breach of implied warranty of habitability)

inapplicable here, as the injury did not result from defects in the construction, reconstruction,

or rehabilitation of the rooming house.

¶ 12 This timely appeal of the trial court’s October 22, 2021, order follows.

¶ 13 II. ANALYSIS

5 No. 1-21-1482

¶ 14 On appeal, plaintiff argues that the trial court erred in granting defendant King’s section 2-

615 motion to dismiss plaintiff’s three-count second amended complaint. Plaintiff argues that

defendants owed him a duty of care as a matter of law.

¶ 15 Dismissal pursuant to section 2-615 is proper only if a defect is apparent on the face of the

complaint. Young v. Bryco Arms,

(2004). The appropriate inquiry is

whether, assuming all well-pleaded facts are true, the complaint states a legally recognized

cause of action. Wakulich v. Mraz,

(2003). Courts construe the complaint’s

allegations in the light most favorable to the plaintiff and draw all reasonable inferences in the

plaintiff’s favor. Young,

; Wakulich,

.

¶ 16 We review a trial court’s order granting a section 2-615 motion to dismiss de novo. Young,

. De novo review means that we perform the same analysis that a trial judge

would perform. Mullins v. Evans,

.

¶ 17 Plaintiff raises a single issue in the instant appeal: did defendants owe plaintiff a duty of

care? Whether a duty exists is a question of law for the trial court to decide. Flores v. Westmont

Engineering Co.,

(citing Marshall v. Burger King Corp.,

(2006)). “[D]etermining whether a duty should be imposed involves

considerations of public policy.” Marshall,

; Jones v. Chicago HMO Ltd. of

Illinois,

(2000).

¶ 18 The parties here agree that a landlord-tenant relationship generally does not impose upon

the landlord a duty to protect tenants from criminal activity by third persons on the landlord’s

property. The parties are correct—this is the law of the land. See, e.g., Rowe v. State Bank of

Lombard,

(1988) (“Generally, there is no duty requiring a landowner

to protect others from criminal activity by third persons on his property absent a ‘special

6 No. 1-21-1482

relationship’ between the parties.”); Gress v. Lakhani Hospitality, Inc.,

(“While generally speaking, the owner or possessor of property does not owe a

duty to protect invitees from the criminal acts of third parties, however, a notable exception to

this is if a special relationship exists between the parties ***.”).

¶ 19 However, as recognized by our precedent, a duty may arise if there is a “special

relationship” between the parties. Marshall,

(“certain special relationships

may give rise to an affirmative duty to aid or protect another against unreasonable risk of

physical harm”). Our courts have recognized four categories of relationships that may create a

duty of care: common carrier and passenger, innkeeper and guest, custodian and ward, and

business invitor and invitee. Marshall,

. Still, even if a special relationship

exists, the risk of physical harm must be reasonably foreseeable in order to impose liability.

Sameer v. Butt,

(2003); Osborne v. Stages Music Hall, Inc.,

(2000).

¶ 20 Thus, we engage in a two-step inquiry: (1) is there a “special relationship” between plaintiff

and defendants and (2) was the physical assault on plaintiff reasonably foreseeable?

¶ 21 A. Special Relationship

¶ 22 In the case at bar, plaintiff urges us to find a “special relationship” between “the owner and

operator of a rooming house and his tenant, where a renter only gets exclusive occupancy of a

single sleeping room, but is forced to share common facilities.” Essentially, plaintiff’s

suggestion is that the circumstances of the relationship in this case are more akin to an

innkeeper-guest relationship (in which the innkeeper owes a duty of care to the guest) rather

than a landlord-tenant relationship (in which the landlord does not owe a duty of care to the

7 No. 1-21-1482

tenant). In addressing that contention, we examine the rationale underpinning the existence of

the innkeeper-guest exception.

¶ 23 The innkeeper-guest exception is one of four recognized exceptions to the general rule that

a landowner does not have a duty to protect persons on his/her property from the criminal

activity of third parties. Sameer,

. Property owners have a duty to exercise

ordinary care in maintaining their property in a reasonably safe condition. Nguyen v. Lam,

. However, “ ‘[o]nly the party in control of the premises can be

held liable for a defective or dangerous condition on the premises.’ ” Hanna v. Creative

Designers, Inc.,

(quoting Hilgart v. 210 Mittel Drive

Partnership,

. “It is axiomatic that if a landlord retains control

of a portion of the premises leased to the tenant it has the duty, as the party in control, to use

ordinary care in maintaining that part of the premises in a reasonably safe condition.

[Citations.] Conversely, a landlord is not liable for injuries caused by a defective condition on

the premises leased to a tenant and under the tenant’s control.” Rowe,

.

¶ 24 Based on the foregoing case law, control of premises is determinative in deciding whether

liability should be imposed. In the context of the innkeeper-guest relationship, our supreme

court reasoned that, “since the ability of one of the parties to provide for his own protection

has been limited in some way by his submission to the control of the other, a duty should be

imposed upon the one possessing control (and thus the power to act) to take reasonable

precautions to protect the other one from assaults by third parties which, at least, could

reasonably have been anticipated.” (Internal quotation marks omitted.) Hills v. Bridgeview

Little League Ass’n,

(2000). That is, the party in control of the premises at

8 No. 1-21-1482

issue is the party who must exercise ordinary care in maintaining those premises in a

reasonably safe condition.

¶ 25 In the case at bar, the premises at issue are the kitchen area where plaintiff was stabbed by

Lin. The kitchen area, toilet areas, bathrooms, and corridors are all shared premises over which

the plaintiff did not have control. Plaintiff had a key only to the room in which he slept. He

had no way to secure any other area. Indeed, much like a guest in a hotel, plaintiff here could

only ensure that his room was locked; he had no means to ensure that any other area of the

rooming house was kept in a safe condition. In fact, plaintiff here did not have his own toilet

or shower; he was required to share these amenities with other renters. Thus, plaintiff in this

case had control over even fewer areas that he needed to use than a typical guest in a hotel.

¶ 26 In addition to being in control of common areas of the rooming house, we cannot say that

defendants fall outside the definition of “innkeepers,” which, as discussed above, can impose

a duty of care. In other words, if defendants are “innkeepers,” a duty of care may be imposed.

Black’s Law Dictionary defines an “innkeeper” as “[s]omeone who, for compensation, keeps

open a public house for the lodging and entertainment of travelers. *** Also termed

hotelkeeper.” (Emphasis in original.) Black’s Law Dictionary (11th ed. 2019). Black’s Law

Dictionary uses the terms “innkeeper” and “hotelkeeper” interchangeably. However, it does

not define “hotel.” Thus, we must look elsewhere to determine what constitutes a “hotel.”

¶ 27 The Innkeeper Protection Act, which, inter alia, shields an innkeeper from theft liability,

defines a hotel as “every building or structure kept, used, maintained, advertised, and held out

to the public to be a place where lodging, or lodging and food, or apartments, or suites, or other

accommodations are offered for adequate pay to travelers and guests, whether transient,

permanent or residential, in which 25 or more rooms are used for the lodging, or lodging and

9 No. 1-21-1482

food, or apartments, or suites, or other accommodations of such guests.” 740 ILCS 90/7 (West

2020). Based on the foregoing, we cannot say that, prima facie, defendants fall outside the

scope of innkeepers.

¶ 28 In Cottmire, this court considered whether permanent residence in a hotel apartment

renders the resident a guest or a tenant. Cottmire v. 181 East Lake Shore Drive Hotel Corp.,

(1947). While admittedly a different scenario, that case is instructive here. In

Cottmire, plaintiff, a resident at a hotel, was injured when a porcelain handle in the bathroom

of her hotel apartment broke. Cottmire,

. The porcelain handle was in the

bathroom prior to when she took occupancy of the apartment, and, at the time of the injury,

she had lived in an apartment at the hotel for about three years, paying a fixed monthly rent.

Cottmire,

. Her apartment at the hotel consisted of a living room, dinette,

kitchenette, and bathroom. Cottmire,

. The jury found that the hotel was

not liable for the resident’s injuries, and plaintiff appealed. Cottmire,

.

¶ 29 On appeal, the appellate court reversed the jury verdict, finding it appropriate to impose

liability on the hotel for an area over which the resident had exclusive occupancy (the

bathroom). Cottmire,

. The court looked to the definition of a hotel in

the Act for the Protection of Innkeepers (the predecessor to the Innkeeper Protection Act), and

found that that definition was satisfied. Cottmire,

. Moreover, the court

found the length of the resident’s stay irrelevant as to whether the relationship between her and

the hotel should be classified as tenant-landlord or guest-innkeeper. Ultimately, the court held

that the relationship between the resident and hotel was indeed guest-innkeeper. The court

therefore allowed the resident, on retrial, to offer evidence showing that the hotel had

knowledge of the danger that porcelain handles presented. Cottmire,

.

10 No. 1-21-1482

¶ 30 Here, plaintiff was also a long-term resident. Moreover, he was injured in a common area

rather than an area over which he had exclusive occupancy (as the resident in Cottmire had).

In other words, plaintiff was injured in an area that defendants had control over. If the Cottmire

court found a special relationship in a situation where the resident exclusively occupied an

entire apartment and was injured in an area of that apartment, then we have an even stronger

reason to find a special relationship in this situation, where plaintiff had exclusive occupancy

over only the room he slept in and was injured in a common area outside of his sleeping room.

The inquiry, however, does not end there. Plaintiff must also show that defendants had notice

and knowledge of Lin’s propensity for violent behavior. In line with our precedent, we believe

that, at a minimum, plaintiff should be afforded another chance to allege the foregoing, if he

can. This is further discussed below in the section on reasonable foreseeability.

¶ 31 Based on the foregoing, we find that, in these circumstances, there is a special relationship

between plaintiff, as a renter in a rooming house who had control only over the room he slept

in, and defendants, as owners of the rooming house who had control over common areas

outside of renters’ sleeping rooms.

¶ 32 B. Reasonable Foreseeability

¶ 33 Having found the existence of a special relationship between plaintiff and defendants in

the case at bar, we move to the second step of the inquiry: was the attack on plaintiff reasonably

foreseeable?

¶ 34 In the context of premises liability, “ ‘[t]here is no liability for a landowner for dangerous

or defective conditions on the premises in the absence of the landowner’s actual or constructive

knowledge.’ ” Nunez v. Diaz,

(quoting Tomczak v.

Planetsphere, Inc.,

(2000)). Under ordinary negligence standards,

11 No. 1-21-1482

“[f]oreseeability means that which is objectively reasonable to expect, not merely what might

conceivably occur.” (Internal quotation marks omitted.) Hills,

.

¶ 35 In the case at bar, there does not appear to be any allegation that even suggests that

defendants had any knowledge or notice whatsoever regarding Lin’s violent history (to the

extent Lin had a violent history).

¶ 36 In his second amended complaint, plaintiff alleges that prior “altercations included an

incident in or about 2018 in the common areas of the premises involving a knife attack on a

resident.” But this has nothing to do with Lin. Plaintiff’s second amended complaint is devoid

of any allegations that Lin himself has a history of knife violence, violence involving any

weapon, or even physical violence generally. Without allegations of such a history, it is

difficult to find that this claimed knife attack on plaintiff was reasonably foreseeable, as

required by the applicable legal standard.

¶ 37 Plaintiff also alleges that he and other renters had complained to defendants about Lin’s

“aggressive behavior” and that defendants had done nothing in response. However, there is a

significant difference between general “aggressive behavior” and stabbing someone repeatedly

with a large knife, which is what Lin did. Without more, a general allegation of an individual’s

“aggressive behavior” cannot be expected to provide notice and knowledge that the individual

may reasonably be expected to attack another person with a knife.

¶ 38 Based on plaintiff’s allegations in his second amended complaint, we agree with the trial

court’s dismissal of the complaint. However, we disagree with its grant of the motion to dismiss

with prejudice. If plaintiff moves the trial court to file another amended complaint that alleges

negligence based on specific facts that show that defendants knew Lin had a propensity for

physical violence, that complaint may withstand a motion to dismiss.

12 No. 1-21-1482

¶ 39 III. CONCLUSION

¶ 40 For the foregoing reasons, we affirm the trial court’s order granting King’s motion to

dismiss but vacate the portion of the order dismissing plaintiff’s complaint with prejudice.

¶ 41 Affirmed in part and vacated in part.

13 No. 1-21-1482

Xuedong Pan v. King,

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 20-L-4061; the Hon. Margaret Ann Brennan, Judge, presiding.

Attorneys Mark S. Schaffner, of Law Offices of Mark Schaffner, P.C., of for Chicago, for appellant. Appellant:

Attorneys Fritz V. Wilson and Madeline J. Scott, of Best, Vanderlaan & for Harrington, of Chicago, for appellees. Appellee:

14